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  4. InBalance Motorbike Training Pty Ltd v Chief Executive, Department of Transport and Main Roads - [2017] QCAT 103

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InBalance Motorbike Training Pty Ltd v Chief Executive, Department of Transport and Main Roads[2017] QCAT 103

InBalance Motorbike Training Pty Ltd v Chief Executive, Department of Transport and Main Roads[2017] QCAT 103

CITATION:

InBalance Motorbike Training Pty Ltd v Chief Executive, Department of Transport and Main Roads [2017] QCAT 103

PARTIES:

InBalance Motorbike Training Pty Ltd

(Applicant)

v

Chief Executive, Department of Transport and Main Roads

(Respondent)

APPLICATION NUMBER:

GAR021-17

MATTER TYPE:

General administrative review matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Browne

DELIVERED ON:

20 March 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The application for a stay is refused.

CATCHWORDS:

PROFESSIONS AND TRADES – LICENSES AND REGISTRATION – OTHER MATTERS – REVIEW – where the Chief Executive cancelled the applicant’s approval as a registered service provider – where the applicant seeks a review of that decision – where application to stay the decision pending review – whether the stay should be granted

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 22(3), s 22(4)

 

Deputy Commission Stewart v Kennedy [2011] QCATA 254

Erathnage v Medical Board of Australia [2016] QCAT 418

REPRESENTIVES:

 

APPLICANT:

InBalance Motorbike Training Pty Ltd represented by SPC Lawyers

RESPONDENT:

Chief Executive, Department of Transport and Main Roads represented by RBG Lawyers

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

  1. [1]
    InBalance Motorbike Training Pty Ltd want to stay a decision made on 25 January 2017 to cancel their approval as a Q-Ride Registered Service Provider (RSP).
  2. [2]
    InBalance and the Chief Executive, Department of Transport and Main Roads have been directed to file written submissions and supporting material in relation to the application to stay.[1] The issue to be considered now is whether the reviewable decision should be stayed until the Tribunal on review has finally determined the application to review the Chief Executive’s decision.

Background to the reviewable decision

  1. [3]
    Since 2012, InBalance have been in the business of assessing individuals on their ability to ride a motorcycle competently. InBalance was first registered as a RSP on 1 July 2013 under Part 4 of the former Transport Operations (Road Use Management – Accreditation and Other Provisions) Regulation 2005 (Qld).
  2. [4]
    InBalance, as a RSP, work with authorised rider trainers (ARTs). The ARTs assess competency of a rider and issue relevant paperwork to allow that person to obtain a licence from the Department of Transport and Main Roads to ride a particular motorbike on Queensland roads. The ARTs report to InBalance regularly. InBalance provide training materials and minimum standard requirements to all of its ARTs. The ARTs are unable to operate without InBalance.[2]
  3. [5]
    On 10 November 2016, the Chief Executive acted on information received from [redacted][3] and cancelled the accreditation of two ARTs for which InBalance was responsible. [Redacted].[4]
  4. [6]
    The Chief Executive also issued a notice to InBalance inviting it to ‘show cause’ as to why its approval should not be cancelled. The Chief Executive later determined to cancel InBalance’s approval as a Q-Ride RSP.[5] That decision will be reviewed at a final hearing by the Tribunal on review (the reviewable decision).
  5. [7]
    The Chief Executive’s decision letter sets out the reasons why the reviewable decision was made and refers to amongst other things, the actions of the subject ARTs and a breach of the Code of Conduct and states that their actions have brought into disrepute Transport Main Roads, the driver training industry and Q-Ride scheme.[6]
  6. [8]
    In its decision letter, the Chief Executive refers to ‘demonstrated clear and repeated failure[s]’ by InBalance in its responsibilities to adhere to the conditions of its approval.[7] The Chief Executive states that had InBalance acted in a reasonable and diligent manner as required of a Q-Ride RSP, [redacted][8] of the subject ARTs would have been detected.  The Chief Executive also states that the Department’s primary consideration in administering the Q-Ride scheme and approval holders such as RSPs is to ‘ensure public safety and that motorbike driver licences are not issued to those who have not received high quality Q-Ride training and assessment. This outcome is also very much in the public interest’.[9]
  7. [9]
    InBalance want to stay the Chief Executive’s reviewable decision. In written submissions in support of the stay application, InBalance says that it has not contravened any regulation or requirement in any substantial way that would have prevented the subject ARTs from [redacted].[10] InBalance says that it maintained adequate systems and [redacted][11] was such that daily reporting would not have prevented it. InBalance says that the alleged conduct [redacted].[12]
  8. [10]
    InBalance also says that if the stay is not granted the decision will have a ‘direct and negative financial impact’.[13] InBalance says that it presents no concern to public safety and has been operating since 2012 ‘without incident’.[14] InBalance says that the Chief Executive decision-maker has provided no evidence to substantiate that it (InBalance) is ‘any danger to public safety’.[15] Inbalance says that it would be ‘inherently unjust’ to accept the Chief Executive’s submission (in relation to public safety) in light of the fact that the substantive issue has not been reviewed by the Tribunal and [redacted].[16]

What is the Tribunal’s power to grant a stay?

  1. [11]
    There is power under s 22(3) of the QCAT Act to grant a stay if the Tribunal considers that the order ‘is desirable’ after having regard to certain matters. The matters under s 22(4) include the interests of the person who may be affected by the refusal of a stay, any submissions made by the decision-maker and the public interest. Section 22(4) relevantly provides as follows:

The tribunal may make an order under subsection (3) only if it considers the order is desirable after having regard to the following –

  1. (a)
    the interests of any person whose interests may be affected by the making of the order or the order not being made;
  2. (b)
    any submission made to the tribunal by the decision-maker for the reviewable decision;
  3. (c)
    the public interest.
  1. [12]
    In Erathnage v Medical Board of Australia[17] the Tribunal adopted a different approach to that previously taken in Deputy Commission Stewart v Kennedy[18] in relation to granting a stay under s 22(4). The Tribunal said that the approach taken in Kennedy’s case was, in addition to the ordinary principles, to include the fundamental questions of whether the applicant has an arguable case and whether the balance of convenience favours the grant of a stay.[19]
  2. [13]
    In Erathnage’s case, the Deputy President of the Tribunal said that s 22(3) gives the Tribunal power to stay the operation of a decision if a proceeding for a review of the decision has started under the Act. The Deputy President said that the Tribunal may only grant the stay if the order is ‘desirable’ having regard to the three matters set out in s 22(4).[20] The Deputy President said this involves the exercise of a broad discretion and may include a consideration of whether there is an arguable case. The relevant extract from Erathnage’s case is as follows:

The words of the subsection give to the tribunal a broad discretion, taking into account those matters therein referred to. These are the matters to which any application for a stay should address. It may be that in addressing those matters, questions of the utility of any application and whether there is an arguable case must also be considered. They are matters which one would expect to be encompassed by the requirement that the tribunal consider the submissions made by the decision-maker for the reviewable decision and the public interest.[21]

  1. [14]
    In this matter, an application to review the Chief Executive’s decision has been filed in the Tribunal. InBalance is clearly affected by the making of an order to stay or not stay the reviewable decision. This is because the reviewable decision made was to cancel InBalance’s approval as a Q-Ride RSP. InBalance is unable to operate without approval.
  2. [15]
    InBalance relies on the sworn evidence of [redacted],[22] Director of InBalance. [The Director] states that his sole income is from InBalance and he will suffer financial hardship if the cancellation takes effect.[23] [The Director] states that he is the sole income earner and provider for his household, he is married with no dependent children. [The Director] states that he has debts and financial responsibilities including leasing areas to deliver QRide training and assessment, insurance for other ART’s, registrations and maintenance for many motorcycles, websites, phones and computing costs.[24] [The Director] also states that there are bookings that have already been made with other ARTs and InBalance and that ‘many Queenslanders’ will be disadvantaged if InBalance is unable to operate.[25] [The Director] also states that the other ARTs linked to InBalance will not be able to operate and this will have a significant effect on their individual business both directly and indirectly stating ‘via reputation’.[26] [The Director] states that ‘it [the decision] is also already causing undue stress to a number of ARTs’.[27]
  3. [16]
    In relation to the matters set out under s 22(4) of the QCAT Act, the Chief Executive decision-maker has filed written submissions opposing the stay. The Chief Executive accepts that InBalance has an arguable case on the final hearing. The Chief Executive says, however, that there is a ‘clear and obvious’ public interest in maintaining the public confidence in the integrity of the system of motorcycle riders.[28] The Chief Executive says that the integrity of that system was [redacted].[29]
  4. [17]
    The Chief Executive submits that the ‘critical factor’ in this application is public safety and refers to the public confidence that InBalance’s business is able to train and assess learners in accordance with the strict legislative scheme.[30]
  5. [18]
    The Chief Executive relies on the sworn evidence of Nigel Gavin Ellis, Acting Executive Director (Vehicle Management and Advocacy). Mr Ellis states that the reviewable decision was based on the failure of the applicant (InBalance) to detect the activities of the subject ARTs. Mr Ellis refers to a failure by InBalance to require the subject ARTs to provide a Q-Ride training record within a day of assessing a learner’s competency to ride as required by s 41 of the Regulation. Mr Ellis refers to a statement given by [redacted].[31]
  6. [19]
    In relation to the submission advanced by InBalance as to the inability of other ARTs to operate by reason of the decision and in the event that a stay is not granted, Mr Ellis states that the reviewable decision does not prevent those ARTs being engaged by another RSP. Mr Ellis states that there are ‘numerous’ RSPs that could be approached by those ARTs. In relation to the public interest, Mr Ellis states that the ‘key factor’ in reaching the reviewable decision was the need to protect the safety of the public given the ‘possible adverse consequences for the public of persons being issued with motorcycle licences who had not reached the legislated training and assessment’.[32]
  7. [20]
    The Tribunal has carefully considered the written submissions and supporting material filed by both parties. I am not satisfied that a stay is desirable in this matter having considered all of the submissions and supporting material and the matters under s 22(4) of the QCAT Act in particular the public interest.
  8. [21]
    I accept that InBalance has an arguable case. InBalance will have an opportunity to present further evidence and material relevant to the review application that will be determined at a final hearing by the Tribunal on review.
  9. [22]
    I accept that InBalance and [The Director] personally by reason of his position as a Director, will suffer financial detriment if the stay is not granted. The Tribunal has previously said in another matter that any financial hardship is ‘secondary to the wider public interest’ and that public safety is the decision-maker’s primary consideration. In Novak v Chief Executive, Department of Transport and Main Roads[33] the Tribunal in exercising its merit review function accepted a submissions advanced by the Department of Transport and Main Roads that any possible financial hardship suffered by the applicant is secondary to the wider public interest and that ‘public safety is the [Department’s] primary consideration’.[34]
  10. [23]
    The Tribunal has also determined in considering matters under s 22(4) of the QCAT Act in cases where a professional person’s right to practise has been suspended or cancelled, that the personal circumstances or an inability to work has not been recognised as being sufficient to warrant the granting of a stay.[35]
  11. [24]
    In relation to any detriment caused to other ARTs if the stay is not granted, I accept the submission advanced by the Chief Executive that the reviewable decision does not prevent the other ARTs being engaged by another RSP. I have considered the material relied upon by InBalance in particular the sworn evidence of [the Director] and the statements from other ARTs attached to [the Director]’s sworn affidavit. Although other ARTs refer to detriment financially and in terms of reputation caused by the reviewable decision and the stay not being granted, I am satisfied that the material demonstrates that there is a possibility of finding another RSP if the stay is not granted. In particular one of the ART’s states that damage has already been done to the business and if another RSP was found it would be necessary to ‘make adjustments’ referring to the website, business cards, signwriting and other advertising at ‘considerable expense and downtime’.[36] This would seem to suggest that subject to ‘adjustments’ being made and ‘expense’, another RSP could be sourced by the relevant ART.
  12. [25]
    I find that any financial detriment caused to InBalance and [the Director] personally as a result of the reviewable decision and a refusal to grant a stay, is secondary to the public interest. The public interest is a matter I must take into consideration in exercising the broad discretion under s 22(3) and having regard to the matters set out in s 22(4) of the QCAT Act.
  13. [26]
    I find that in this case, the public interest outweighs any other considerations such as financial hardship directly and indirectly caused to the applicant (InBalance) and whether InBalance has an arguable case. I accept the Chief Executive’s submission that the protection and safety of the public is paramount given the possible adverse consequences for the persons in the public being issued with motorcycle licences who have not received the legislated training and assessment. This could potentially have serious consequences in not only public safety for the persons using the motorcycle licences without proper training and assessment but also other road users who may be placed at risk by reason of the inexperienced licensed riders of motorcycles. I find that the public interest in ensuring standards are maintained in the assessment and issuing of licences to riders using Queensland roads outweighs any of the other matters relevant to the granting of a stay. The stay is refused.

Footnotes

[1]Directions dated 28 February 2017.

[2]Affidavit of [the Director] sworn 2 March 2017, [3].

[3]Redacted in accordance with the Tribunal’s direction dated 28 February 2017.

[4]Ibid.

[5]Section 21 material. The decision made on 25 January 2017 was to confirm or uphold the original decision to cancel InBalance’s approval as a Q-Ride RSP.

[6]Section 21 material, pp 9 to 17.

[7]Ibid.

[8]Redacted in accordance with the Tribunal’s direction dated 28 February 2017.

[9]Section 21 material, pp 9 to 17.

[10]Redacted in accordance with the Tribunal’s direction dated 28 February 2017.

[11]Ibid.

[12]Ibid.

[13]Submissions on behalf of the applicant – stay application filed on 9 March 2017.

[14]Ibid.

[15]Ibid.

[16]Redacted in accordance with the Tribunal’s direction dated 28 February 2017.

[17][2016] QCAT 418.

[18][2011] QCATA 254.

[19]Ibid, [21].

[20]Ibid, [22].

[21]Deputy Commission Stewart v Kennedy [2011] QCATA 254, [23].

[22]Redacted in accordance with the Tribunal’s direction dated 28 February 2017.

[23]Affidavit of [the Director] sworn 2 March 2017.

[24]Ibid.

[25]Ibid.

[26]Ibid.

[27]Ibid.

[28]Respondent’s submissions – stay application filed on 7 March 2017.

[29]Ibid.

[30]Redacted in accordance with the Tribunal’s direction dated 28 February 2017.

[31]Redacted in accordance with the Tribunal’s direction dated 28 February 2017.

[32]Ibid.

[33][2012] QCAT 160.

[34]Ibid, [31].

[35]Erathnage’s case, [24]. See also Jaravaza v Medical Board of Australia [2013] QCAT 44, [28], YXN v Medical Board of Australia [2014] QCAT 706, [23].

[36]Affidavit of [the Director] sworn 2 March 2017, Exhibit marked ‘BH1’.

Close

Editorial Notes

  • Published Case Name:

    InBalance Motorbike Training Pty Ltd v Chief Executive, Department of Transport and Main Roads

  • Shortened Case Name:

    InBalance Motorbike Training Pty Ltd v Chief Executive, Department of Transport and Main Roads

  • MNC:

    [2017] QCAT 103

  • Court:

    QCAT

  • Judge(s):

    Member Browne

  • Date:

    20 Mar 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Deputy Commissioner Stewart v Kennedy [2011] QCATA 254
3 citations
Jump To
Cite 1 - [2011] QCATA 254
Cite 2 - [2011] QCATA 254
Cite 3 - [2011] QCATA 254
Erathnage v Medical Board of Australia [2016] QCAT 418
2 citations
Jump To
Cite 1 - [2016] QCAT 418
Cite 2 - [2016] QCAT 418
Jaravaza v Medical Board of Australia [2013] QCAT 44
1 citation
Jump To
Cite 1 - [2013] QCAT 44
Novak v Chief Executive, Department of Transport and Main Roads [2012] QCAT 160
1 citation
Jump To
Cite 1 - [2012] QCAT 160
YXN v Medical Board of Australia [2014] QCAT 706
1 citation
Jump To
Cite 1 - [2014] QCAT 706

Cases Citing

Case NameFull CitationFrequency
Eldridge v Department of Transport and Main Roads [2019] QCATA 1552 citations
1

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